News and insights from our Private Client team
FAQs : Welfare attorneys
I regularly advise health and welfare attorneys on their duties, and it’s quite apparent that the same concerns come up time and time again. Planning for later, or even end of life is difficult, so below are some answers to the questions frequently asked by those who are considering putting in place a Lasting Power of Attorney (LPA) for health and welfare, and what it means for their chosen attorneys.
What is a health and welfare LPA?
Anyone over the age of 18, can complete an LPA for their welfare decisions; this person is known as ‘the donor’. The donor makes this type of LPA to appoint attorneys to make decisions about their personal welfare, which can include healthcare and medical treatment decisions.
Why do I need a health and welfare LPA?
- Where the donor (you) should live and who they should live with
- The donor’s day to day care, including diet and dress
- Who the donor may have contact with
- Consenting to or refusing medical examination and treatment on the donor’s behalf
- Arrangements needed for the donor to be given medical, dental or optical treatment
- Assessments for and provision of care services
- Whether the donor should take part in social activities, leisure activities and/or educational training
- The donor’s personal correspondence and papers
- Right of access to personal information about the donor
- Complaints about the donor’s care or treatment
This decision-making does not automatically fall to the next of kin and unless the health and welfare LPA is in place, medical professional and social workers can end up making these best interests decisions for you.
What is a best interests decision?
All attorneys must make decisions in the donor’s best interests. It is extremely important that the decision which is made best fits the outcome that would be desired by the donor. If the donor therefore had capacity to make this decision, what decision would she/he make regardless of whether this decision would be the best outcome for anyone else? By that I mean, when you are acting as an attorney for a donor, the best interests decision that is right for the donor should be made, and not what is the best (or preferred) outcome for the attorney making the decision.
The checklist is held within section 4 of the Mental Capacity Act 2005 and can be summarised as follows: -
- Equal consideration on discrimination. The person determining best interests must not make assumptions about someone’s best interests merely on the basis of their age or appearance, condition or an aspect of their behaviour.
- All relevant circumstances. You must try to identify all the issues and circumstances relating to the decision in question which are most relevant to the person who lacks capacity to make that decision.
- Regaining capacity. Consider whether the person is likely to regain capacity (e.g. after receiving medical treatment). If so, can the decision wait until then?
- Permitting and encouraging participation. Do whatever is reasonably practicable to permit and encourage the person to participate or to improve their ability to participate, as fully as possible in any act done or any decision affecting them.
- The person’s wishes, feelings, beliefs and values. Try to find out the views of the person lacking capacity, including:
- the person’s past and present wishes and feelings, current views and whether any relevant views have been expressed in the past, either verbally, in writing or through behaviour or habits;
- any beliefs and values (e.g. religious, cultural, moral or political) that would be likely to influence the decision in question;
- any other factors the person would be likely to consider if able to do so (this could include the impact of the decision on others).
Who should I choose as my health and welfare attorney?
In my experience, your welfare decisions are some of the most important you could ask someone else to make for you. It should be the person or persons closest to you who know you best, not just your nearest family members, but possibly your dearest friend.
These decisions are so personal to you; would you want them made by strangers? If not, then please contact me via firstname.lastname@example.org or on 01775 842536 to request details on completing, what is in my view, the most important document you will ever need!